Citation Nr: 0329958
Decision Date: 10/31/03 Archive Date: 11/05/03
DOCKET NO. 02-08 692A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to an increased rating for the veteran's service-
connected lumbosacral strain with early degenerative disc
disease, L5-S1, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
M. Carr, Associate Counsel
INTRODUCTION
The veteran had active service from July 1990 to June 1994.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
New Orleans, Louisiana, which denied the veteran's claim of
entitlement to an increased rating for his service-connected
low back condition, currently evaluated as 10 percent
disabling.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA) made
significant changes in VA's duty to notify and assist
claimants for benefits administered by the Secretary.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West
2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a))
(2003). VA has a duty to notify the veteran of information
and evidence necessary to substantiate his claim, and of
which information and evidence, if any, he must produce, and
of which information and evidence, if any, VA will attempt to
obtain. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R.
§ 3.159(b) (2003); Quartuccio v. Principi, 16 Vet. App. 183,
187 (2002). The veteran was informed of these changes in the
law by a letter sent by VA in March 2001.
The March 2001 letter, however, inadequately informed the
veteran of the information and evidence necessary to
substantiate his claim of entitlement to an increased rating
for his service-connected lumbosacral strain with early
degenerative disc disease, L5-S1, currently evaluated as 10
percent disabling. The March 2001 VCAA letter provided only
a discussion of what is necessary to establish entitlement to
service connection. Additionally, the June 2002 Statement of
the Case (SOC) provided the veteran with the old version of
38 C.F.R. § 3.159.
In this regard, in a decision promulgated on September 22,
2003, Paralyzed Veterans of America v. Secretary of Veterans
Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir. Sept.
22, 2003), the United States Court of Appeals for the Federal
Circuit invalidated the 30-day response period contained in
38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§
5103(b)(1). The Court made a conclusion similar to the one
reached in Disabled Am. Veterans v. Secretary of Veterans
Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a
related Board regulation, 38 C.F.R. § 19.9). The court found
that the 30-day period provided in § 3.159(b)(1) to respond
to a VCCA duty to notify is misleading and detrimental to
claimants whose claims are prematurely denied short of the
statutory one-year period provided for response. Therefore,
since this case is being remanded for additional development,
the RO must take this opportunity to inform the appellant
that notwithstanding the information previously provided, a
full year is allowed to respond to a VCAA notice.
In evaluating musculoskeletal disabilities, the Board must
assess functional impairment and determine the extent to
which a service-connected disability adversely affects the
ability of the body to function under the ordinary conditions
of daily life, including employment. 38 C.F.R. § 4.10
(2003). Ratings based on limitation of motion do not subsume
the various rating factors in 38 C.F.R. §§ 4.40 and 4.45,
which include pain, more motion than normal, less motion than
normal, incoordination, weakness, and fatigability. These
regulations, and the prohibition against pyramiding in 38
C.F.R. § 4.14, do not forbid consideration of a higher rating
based on a greater limitation of motion due to pain on use,
including flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206-
08 (1995). In other words, when rated for limitation of
motion, a higher rating may be assigned if there is
additional limitation of motion from pain or limited motion
on repeated use of the joint. A finding of functional loss
due to pain must be "supported by adequate pathology and
evidenced by the visible behavior of the claimant." 38
C.F.R. § 4.40 (2003). A little used part of the
musculoskeletal system may be expected to show evidence of
disuse, either through atrophy, the condition of the skin,
absence or normal callosity or the like. Id. The guidance
provided by the Court in DeLuca must be followed in
adjudicating the veteran's increased rating claim for his
back disability.
The Board also notes that VA has amended its Schedule for
Rating Disabilities, 38 C.F.R. Part 4, by revising that
portion of the Musculoskeletal System that addresses
disabilities of the spine. Schedule for Rating Disabilities;
The Spine, 68 Fed. Reg. 51454-51458 (2003) (to be codified at
38 C.F.R. Part 4). The effective date of this amendment is
September 26, 2003.
Furthermore, the rating criteria under Diagnostic Code 5293
changed effective September 23, 2002. Controlling law
provides that when a law or regulation changes during the
pendency of an appeal, the criteria more favorable to the
veteran be applied, absent congressional intent to the
contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-313
(1991). Here, the veteran has not been afforded a VA
examination which has considered his service-connected
disability under the new regulations. Additionally, the
November 2001 VA examination was insufficient in that it
failed to fully comply with the above-described guidance
provided by the Court in DeLuca.
Accordingly, this case is REMANDED to the RO for the
following actions:
1. The RO should review the claims file
and ensure that all notification and
development action required by 38
U.S.C.A. §§ 5102, 5103, and 5103A (West
2002) are fully complied with and
satisfied. See also 66 Fed. Reg. 45620-
32 (August 29, 2001) (codified at 38
C.F.R. § 3.159). The RO should also
ensure compliance with VA's obligations
under the VCAA as interpreted by
Quartuccio v. Principi, 16 Vet. App. 183
(2002) and Paralyzed Veterans of America
v. Sec'y of Veterans Affairs, Nos. 02-
7007, -7008, -7009, -7010 (Fed. Cir.
September 22, 2003).
2. The RO should then schedule the
veteran for VA orthopedic and
neurological examinations in order to
ascertain the nature and severity of his
service-connected low back disability.
All signs and symptoms of his low back
disability should be described in detail,
including any signs and symptoms present
that would be necessary for rating
intervertebral disc syndrome under the
old and new rating criteria of Diagnostic
Code 5293. Furthermore, in addition to
addressing range of motion, the examiner
is requested to specifically address the
extent, if any, of functional loss due to
pain, incoordination, weakness, pain on
flare-ups and fatigability with use. If
feasible such findings should be
portrayed in terms of degrees of
additional loss of motion. The claims
folder and a copy of this remand must be
made available to the examiner prior to
the examination for review. Such review
should be indicated on the examination
report.
3. Thereafter, the RO should
readjudicate the claim on appeal with
consideration being given to both the new
and old criteria for the spine, to
include the old and new criteria for
evaluating intervertebral disc syndrome.
If the benefit sought on appeal remains
denied, the veteran and his
representative should be provided a
Supplemental Statement of the Case (SSOC)
which covers all evidence received since
issuance of the last SSOC and which
adequately informs the veteran of the new
criteria for evaluating his back
disability. An appropriate period of
time should be allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
C.W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).